IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/Appellant,

v.

ANDRE BELL,

Defendant/Respondent,

Case No. E063018

Super. Ct. Nos. RIF1205134/RIF1300396

RESPONDENT’S BRIEF

TO THE HONORABLE PRESIDING JUSTICE AND JUSTICES OF THE FOURTH DISTRICT COURT OF APPEAL,

DIVISION TWO:

Respondent, Andre Bell, was properly resentenced under Penal Code

section 1170.18, as to all counts of which he was convicted and for which

he was serving a sentence. The trial court properly found, based on the

court’s records, that he had made a prima facie showing that each crime, if

committed after the passage of Proposition 47, would have been punishable

as a misdemeanor. No evidence was presented by the People, much less

evidence tending to prove that he was not eligible for resentencing. And

the legal arguments advanced by the People lacked merit. The trial court’s

judgments as to each case and all counts should be affirmed.

STATEMENT OF RELEVANT FACTS AND PROCEDURE

On November 5, 2014, when the Voters adopted Proposition 47

(hereinafter “Prop 47” or “the Act”), Respondent was confined in prison,

serving a sentence, in part due to his felony convictions in Riverside

Superior Court case RIF1205134 for the crimes of Receiving Stolen

Property (Count 1) and Petty Theft (Count 3) and, in part due to this felony

conviction in Superior Court case RIF1300396, in which he was convicted

of Second Degree Burglary. (Court’s Transcript, hereinafter “CT,” pp. 12-

13.)

The conduct underlying the Receiving Stolen Property charge in

case RIF1205134, as alleged and adopted by virtue of Respondent’s guilty

plea, was that, on December 25, 2012, he willfully and unlawfully received

and possessed a credit card belonging to Margaret Roa. (CT, at pp. 1, 4.)

The conduct underlying the Petty Theft charge is not specified anywhere in

the record; however, an element of the offense, conclusively established by

Respondent’s guilty plea, is that the value of the property taken did not

exceed $950.

The conduct underlying the Burglary conviction in case

RIF1300396, as alleged and adopted by virtue of Respondent’s guilty plea,

was that, on November 23, 2012, Respondent had wilfully and unlawfully

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entered a building located at 1294 University Avenue, Riverside, with

intent to commit theft and a felony. (CT, p. 5, p. 9.) According to the

Abstract of Judgment, restitution was ordered in the amount of $850 in case

RIF1300396 (CT, p. 16) and no victim restitution was ordered in case

RIF1205134 (CT, p. 10-13.)

In November, 2014, after the passage of the Act, Petitioner sent a

letter to the judge who had sentenced him, requesting to be resentenced in

both cases, under the resentencing provision of the Act. (CT, p. 20.)

Pursuant to Riverside County Superior Court’s unwritten protocol, this

letter was deemed a petition for resentencing under Penal Code section

1170.18, and the case was set for hearing. In a letter dated January 6, 2015,

after receiving the People’s informal response to his request for

resentencing in case RIF1300396, Respondent informed the court that the

collective loss in both of his commitment cases had not exceeded $950, and

pointed out that the victim restitution ordered in case RIF1300396 totaled

$850 and that no restitution had been ordered with regard to case

RIF1206134. (CT, pp. 23-24; see also CT, p. 13.)

On February 6, 2015, a hearing was conducted, at which the People

presented no evidence refuting Respondent’s claim that he was eligible for

resentencing as to all three crimes of which he had been convicted and was

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serving a sentence. The People argued, as to Count 11 in case RIF1206134,

the Receiving Stolen Property offense, that the credit limit of the account-

holder should be the measure used in assessing the value of a stolen credit

card for purposes of an eligibility analysis under section 1170.18,

subdivision (a) (RT, at p. 8, lines 21-28), and, in a written pleading filed on

the hearing date, contended that Respondent had not made a prima facie

showing that the credit limit of the account-holder of the individual named

in Count 1, Margaret Roa, was not above $950. (CT, p. 28.) Respondent’s

counsel pointed out that nothing in the record of conviction established

what Ms. Roa’s credit limit had been with regard to her Target credit card,

which, according to the discovery provided, had been the subject of the

Receiving Stolen Property charge. (RT, p. 10, lines 5-9.)

The court found that, at least where there is no evidence that

Respondent used or attempted to use the stolen credit card, the credit limit

of the accountholder could not be the proper test for establishing the value

of a stolen credit card. (CT, at p. 25, RT, pp. 8-9.) The matter was

submitted, and, based on the contents of the court’s file and the state of the

evidence, the court granted the petition. (RT, p. 9.) The court vacated

Respondent’s prison sentence, deemed the petty theft charge a

1 The People did not present any evidence regarding the nature or value of the property that was the subject of count 3, the petty theft.

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misdemeanor violation of section 490.2, and resentenced Petitioner to

concurrent county jail sentences. (RT, p. 9.)

With regard to the commercial burglary charge in case RIF1300396,

upon Petitioner’s letter being deemed a petition for resentencing, the People

filed an informal opposition, asserting that the offense did not qualify for

resentencing for the following reason: “Loss over $950.” (CT, p. 21.) On

the day set for the hearing, the People filed a formal pleading, contending

(1) that a person who pled guilty pursuant to a plea bargain cannot petition

for resentencing under section 1170.18, subdivision (a) while retaining the

benefit of the plea bargain (CT, 32-34), (2) that, had Defendant been

convicted of the Grand Theft charge that had been dismissed pursuant to

the plea bargain, he would not be eligible for resentencing (CT, pp. 34-35),

and (3) that, should the petition for resentencing be granted, the People

would be moving for an order reinstating all dismissed charges and

allegations (CT, pp. 34-39).

At the hearing, the People presented no evidence to support the

assertion that, notwithstanding the $850 restitution order, the offense had

involved property valued at more than $950 (RT, p. 11, lines 20-28) and

submitted on their pleading with regard to the “plea bargain” contention

(RT, p. 12, lines 4-5.) The court granted the petition, and denied the

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People’s request to force Respondent to elect between withdrawing his

resentencing petition or withdrawing his guilty plea and having all

dismissed charges and allegations reinstated. (RT, p. 12.) The court

vacated Respondent’s prison sentence, deemed the section 459 conviction

to be a conviction for violating section 459.5, and imposed a county jail

sentence. The People appealed.

STANDARD OF REVIEW

The orders from which the People appeal, orders granting a petition

for resentencing brought under section 1170.18 involve determinations of

fact and determinations and application of law. Where mixed questions of

fact and law require “a critical consideration, in a factual context, of legal

principles and their underlying values, the question is predominantly legal

and its determination is reviewed independently. [Citation.].” (Crocker

National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881,

888, citation omitted.) This appears to be the proper standard of review for

the instant appeal.

SUMMARY OF ARGUMENT

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Appellant contends, with respect to case RIF1205134, that the trial

court erred in even considering a section 1170.18 petition for resentencing,

because Appellant pled guilty pursuant to a plea bargain. (AOB, pp. 4-8.)

As a corollary to this argument, Appellant contends that, by availing

himself of the resentencing provision of Proposition 47, Respondent

somehow “breached” the plea agreement, entitling the People to

reinstatement of all charges and allegations dismissed pursuant to the plea

bargain. (AOB, pp. 12-10.) As explained herein, this contention is contrary

to the plain language of the statute, contrary to the intent of the Voters in

adopting Proposition 47, and contrary to settled principles of California

contract law.

Appellant also contends, with respect to case RIF1300396, that

Respondent failed to make the prima facie showing required by section

1170.18, because, notwithstanding the $850 he was ordered to pay as

victim restitution, he had been charged with a violation of section 487,

grand theft, and, if charged today, would still be charged with a crime

alleging theft of property valued in excess of $950. (AOB, pp. 11-12.) This

argument also ignores the pertinent statutory language and the Voter’s

intent. As explained herein, section 1170.18 addresses the crime of which a

person was convicted, and not crimes with which he was not convicted but

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maybe woulda,’ coulda,’ or shoulda’ been convicted had the case

proceeded to trial.

Finally, with regard to case RIF1205134, Appellant contends that

Petitioner failed to make the prima facie showing required under the statute

because “the value of a stolen credit card should be calculated by the

intended loss and potential use by the defendant, not the monetary value of

the physical card or the amount charged by the defendant.” (AOB, pp. 20-

26.) As explained herein, this speculative and unworkable standard is not

only contrary to well-settled California law regarding calculation of the

value of property, it is contrary to reality.

MEMORANDUM OF POINTS AND AUTHORITIES

I.

SECTION 1170.18 APPLIES TO INDIVIDUALS CONVICTED “BY PLEA,” WHETHER OR NOT THEY PLED GUILTY PURSUANT

TO A PLEA BARGAIN

Eligibility for resentencing under Proposition 47 is straightforward.

Subject to exceptions for disqualifying prior convictions and findings

regarding dangerousness, relief under section 1170.18, subdivision (a) is

available, generally, to anyone “currently serving a sentence for a

conviction, whether by trial or plea, of a felony or felonies who would have

been guilty of a misdemeanor under the…[Safe Neighborhoods and

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Schools Act]…had this act been in effect at the time of the offense.” (§

1170.18, subd. (a), emphasis added.)2 Nothing in the language of section

1170.18, subdivision (a) differentiates between those convicted by a plea

“to the sheet” and those convicted by a “plea bargain.” (T.W. v. Superior

Court (2015) 236 Cal.App.4th 646, 652-653.)

Construing the statute in a manner consistent with its plain language

is not only required under the rules of statutory interpretation (People v.

Briceno (2004) 34 Cal.4th 451, 459), it is consistent with the objective of

the Voters in adopting Proposition 47, to divert funds perceived by the

voters as being wasted by prolonged incarceration and imprisonment of

people for drug possession and low-level property offenses, generated

savings, and invest those savings in crime prevention programs in the

interest of public safety.

Proposition 47 “was intended to reduce penalties ‘for certain

nonserious and nonviolent property and drug offenses from wobblers or

felonies to misdemeanors.’” (Voter Information Guide, Gen. Elec. (Nov. 4,

2014) analysis by the Legis. Analyst, pp. 35–36, boldface and italics

omitted.) ‘This measure allows offenders currently serving felony sentences

for the above crimes to apply to have their felony sentences reduced to

2 Other relief is available to those who have completed serving a sentence for a qualifying felony. (§1170.18, subd. (f).)

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misdemeanor sentences’ [Citation.] This was echoed by the proponents of

Proposition 47, who argued the measure “is sensible” in that it “Stops

wasting prison space on petty crimes and focuses law enforcement

resources on violent and serious crime by changing low-level nonviolent

crimes such as simple drug possession and petty theft from felonies to

misdemeanors.” (Voter Information Guide, argument in favor of Prop. 47,

at p. 38.)

Adopting the interpretation advanced by Appellant, resentencing

under section 1170.18 would be available only to those convicted by trial or

by pleading to all charges and admitting all allegations. Such an

interpretation would effectively exclude 95% of those individuals who

would otherwise be eligible for the relief afforded by the statute.

(Brosnahan v. Brown (1982) 32 Cal.3d 236, 275 [“Over 95 percent of the

criminal convictions in California have heretofore been reached through

plea bargains.”]; see also Judicial Council of Cal., AOC, 2014 Court

Statistics Report: Statewide Caseload Trends 2003-2004 Through 2012-

2013 (2014) at p. 47, available at <

http://www.courts.ca.gov/documents/2014-Court-Statistics-Report.pdf > as

of July 17, 2015 [Indicating over 95% of felony dispositions that resulted in

a conviction were by pre-trial pleas]; In re Chavez (2003) 30 Cal.4th 643,

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654, fn. 5 [“In fiscal year 2000–2001, of the total number of felony

dispositions consisting of felony convictions, less than 5 percent followed a

trial by the court or by a jury.”].) Such a construction of section 1170.18

would completely undermine the Voters’ intent in adopting Proposition 47

and thereby enacting section 1170.18.

Appellant asks this Court to reject the holding of its sister court in

T.W. v. Superior Court, supra, 236 Cal.App.4th at p. 648, that there is no

“plea agreement disqualifier” in section 1170.18, contending that T.W. was

“wrongly decided,” because the Attorney General didn’t ask the Court to

address the cases3 cited by Appellant herein. (AOB, p. 7.) Appellant is not

entirely correct. The Court, in T.W., in holding that section 1170.18 applies

to those convicted by plea bargain, noted that its interpretation

is consistent with the general rule announced by our Supreme Court in Doe v. Harris (2013) 57 Cal.4th 64, 158 Cal.Rptr.3d 290, 302 P.3d 598: “[T]he general rule in California is that the plea agreement will be ‘“deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy....”’ [Citation.] That the parties enter into a plea agreement thus does not have the effect of insulating them from changes in the law that the Legislature has intended to apply to them.” (Id. at p. 66, 158 Cal.Rptr.3d 290, 302 P.3d 598.)

3 These cases are inapplicable, as explained in the next section of this brief.

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(T.W. v. Superior Court, supra, 236 Cal.App.4th 653, fn. 4.) This case,

which applied well-settled rules of statutory interpretation, was correctly

decided.

II.

CASES APPLYING CONTRACT PRINCIPLES TO UNILATERAL

BREACHES OF A PLEA BARGAIN ARE INAPPOSITE

Appellant contends that Respondent must be forced to elect between

petitioning for resentencing, pursuant to a statute duly enacted by adoption

of an initiative subsequent to his guilty plea, or withdrawing his guilty plea

and allowing for reinstatement of all charges and allegations dismissed

pursuant to his plea bargain. Appellant characterizes the filing of a

resentencing petition as a unilateraly “breach” of the plea bargain. (AOB,

p. 4, p. 8.) Appellant is mistaken. A Prop. 47 petitioner does not breach a

plea agreement by pursuing a postconviction statutory remedy created by

the lawmakers of the State of California, “the People”.

Appellant states well-settled principles of contract law, asserting that

a “plea bargain is a contract between the defendant and the prosecutor and

binds both parties to its terms” and “[o]nce the court has accepted the terms

of the negotiated plea, ‘[i]t lacks jurisdiction to alter the terms of a plea

bargain so that it becomes more favorable to a defendant unless, of course,

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the parties agree.’” (AOB at p. 4, quoting in part from People v. Segura

(2008) 44 Cal.4th 921, 929 and People v. Superior Court (Gifford) (1997)

53 Cal.App.4th 1333, 1337.) Respondent does not dispute these settled

principles; only their applicability to the case at hand.

Appellant, the District Attorney for the County of Riverside, asserts

that “[t]he People have never consented to altering that term,” referring to

“[t]he length of respondent’s sentence” as set forth in the plea agreement.

(AOB at p. 7.) While the District Attorney may not have consented to

Proposition 47, including section 1170.18, “the People” most certainly did,

as reflected by the passage of the initiative.

“The district attorney is the public prosecutor” and “shall initiate and

conduct on behalf of the people all prosecutions for public offenses.” (Govt.

Code § 26500, emphasis added; § 684 [“A criminal action is prosecuted in

the name of the people of the State of California…”].) In conducting any

prosecution of violations of state law on behalf of the people, a District

Attorney acts as an agent of the state. (People v. Hy-Lond Enterprises. Inc.

(1979) 93 Cal.App.3d 734, 751.) In general “[a]n agent is one who

represents another, called the principal, in dealings with third persons.”

(Civ. Code § 2295.) “It is a fundamental principle of the law of agency that

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it is the duty of the agent to protect and advance the interests of his

principal.” (Town of Martinez v. Johnson (1927) 201 Cal. 397, 403.)

Applying contract principles to this case, the principals to the plea

bargain were Respondent and the people of the State of California, an entity

which incorporates all who reside in or travel through California and have

an interest in the enforcement of the state’s penal laws. The District

Attorney serves at the employ of its entity-client. Thus, the question is here

is not whether the Riverside District Attorney consented to the modification

of Respondent’s sentence; rather, the question is whether such

modification, by virtue of the adoption of Proposition 47 and resultant

amending of the California Constitution, was consistent with the will and

intent of the “the People”.

Article II, section 1 of the California Constitution states: “All

political power is inherent in the people. Government is instituted for their

protection, security, and benefit, and they have the right to alter or reform it

when the public good may require.” (Cal. Const., art. II, § 1.) Nearly a

century ago, California courts recognized that “A constitutional government

contains within itself the method, the manner, and the power of

constitutional change, and that change is always subject to the will, wish,

and prerogative of the majority of the people exercising the right of

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suffrage in a legal and constitutional manner.” (People v. Cox (1924) 66

Cal.App. 287, 290, emphasis added.) For this reason, article IV, section 1

of the California Constitution empowers the People to enact laws and

thereby amend the State’s constitution through “the power of referendum.”

The power of referendum originates in article IV, section 1 of our state constitution. The first sentence of this section, which grants legislative power to the state legislature, so far as pertinent, reads as follows: ‘* * * the people * * * also reserve the power, at their own option, to * * * reject any act, or section or part of any act, passed by the Legislature.’ This section also provides that ‘The initiative and referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the State to be exercised under such procedure as may be provided by law.’ The section closes with the following significant sentence: ‘This section is self-executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.’

(Dye v. Council of City of Compton (1947) 80 Cal.App.2d 486, 488-89,

quoting article IV, section 1 of the California Constitution.

Respondent, by availing himself of a resentencing provision duly

enacted by the People, did not unilaterally breach the plea bargain. It must

be presumed that when the People adopted Proposition 47, they were aware

that the vast majority of the individuals who qualify for relief under section

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1170.18 were convicted by plea bargain. They consented to modifying pre-

existing sentences imposed pursuant to plea bargains when they adopted a

provision which specifically allows relief to those convicted “by plea.”

“There can be no impairment if the contracting parties consent thereto.”

(Los Angeles Cnty. v. Rockhold (1935) 3 Cal.2d 192, 207.)

Appellant contends that, if Respondent is resentenced, the People

must be permitted to “withdraw from the plea agreement and restore the

status quo before the plea occurred.” (AOB, p. 13.) This argument is

predicated on the incorrect assumption that, by petitioning for resentencing,

Respondent has somehow impaired the rights of the People under the

agreement. As discussed above, this is incorrect.

The governing case regarding the application of contract principles

in the context of plea agreements is Doe v. Harris (2013) 57 Cal.4th 64. In

Doe a defendant (using the pseudonym of “John Doe”) was charged with

six felony charges of committing a lewd and lascivious act with a child

under the age of 14. (Doe, supra, 57 Cal.4th at p. 66.) He entered into a

plea agreement whereby he agreed to plead guilty to a single count in

exchange for the dismissal of the remaining counts and register as a sex

offender under section 290, which, at the time, did not require publication

of any personal identifying information regarding the defendant on the

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internet. (Ibid.) After “Megan’s Law”, codified in section 290.46, was

enacted, Doe sought to be excluded from the Megan’s Law website,

contending that his inclusion on the website “would violate his plea

agreement. (Id., at p. 67.) The California Supreme Court was called upon

to clarify California contract law principles in the context of a plea bargain.

The Court held that, in addition to implicit and explicit terms which

are contemplated by the parties at the time of the agreement, “plea

agreements are deemed to incorporate the reserve power of the state to

amend the law or enact additional laws for the public good and in

pursuance of public policy.” (Doe, supra, 57 Cal.4th at p. 71.) This is

precisely what happened here; as occurred with the adoption of Proposition

36, the Three Strikes Reform Act. The People adopted a law allowing for

resentencing; i.e. a modification of previously agreed upon sentences.

Silence as to “the possibility that the Legislature [or Voters] might amend a

statutory consequence of a conviction should not ordinarily be interpreted

to be an implied promise that the defendant will not be subject to the

amended law.” (Doe, supra, 57 Cal.4th at p. 71.) There is absolutely no

reason why this rule and its corollary wouldn’t apply equally to the

Defendant and to the People. The mere fact that the parties entered “into a

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plea agreement…does not have the effect of insulating them from changes

in the law that the Legislature has intended to apply to them.” (Id. at p. 66.)

Appellant tries to distinguish the instant case from Doe by arguing

that the parties had agreed to a specific term that included a particular

prison term; hence, even the Voters could not modify this sentence. (AOB

at p. 20.) This argument must be rejected. By authorizing resentencing of

those convicted by plea, the People necessarily authorized modification of

sentences agreed to pursuant to pre-Prop 47 plea bargains. In short,

Appellant’s contention is contrary to the plain language of section

1170.18(a), contrary to case law and well-established rules governing

contracts and plea agreements, and contrary to the policy considerations

and intent of the Voters in adopting Proposition 47.

III.

A PERSON’S ELIGIBILITY FOR RESENTENCING UNDER

SECTION 1170.18 DEPENDS ON CRIMES OF WHICH HE WAS

CONVICTED, NOT ABOUT CRIMES OF WHICH HE WOULDA’,

COULDA’ OR SHOULDA’ BEEN CONVICTED

Appellant contends that, with regard to case RIF1300396,

Respondent failed to make a prima facie showing that the crime of which

he was convicted and serving a sentence, if committed today, would be

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punishable as a misdemeanor, because a crime of which he was not

convicted had been charged in the complaint and dismissed pursuant to a

plea bargain. (AOB, pp. 11-12.) Again, Appellant ignores the statutory

language, which clearly states that, “[a] person currently serving a sentence

for a conviction, whether by trial or plea, of a felony or felonies who would

have been guilty of a misdemeanor under the act that added this section

(“this act”) had this act been in effect at the time of the offense may petition

for a recall of sentence …” (§1170.18, subd. (a).) By its language, the

statute provides that the inquiry as to eligibility for resentencing turns on

the crime of which the person was convicted, not the crimes of which he

was charged but not convicted.

Furthermore, Appellant misunderstands the nature of Respondent’s

initial burden. Petitioner was required only to make a prima facie showing,

which he did, by virtue of his letters and the restitution order, that the crime

of which he was convicted and serving a sentence, if committed after the

adoption of the Act, would be punishable as a misdemeanor. (§459.5.)

The initial screening must be limited to a determination of whether the petitioner has presented a prima facie basis for relief under section 1170.18. At this level of review, the court should not consider any factual issues such as dangerousness or the value of any property taken regarding any qualified theft crimes.

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(Couzens & Bigelow, Proposition 47 “The Safe Neighborhoods and

Schools Act”, December 2014, at p. 36.)

Respondent having made the requisite initial showing, the burden

shifted to the People to demonstrate that, in fact, Petitioner had entered with

the intention of stealing property valued at more than $950. (Couzens &

Bigelow, supra, at p. 39, citing People v. Feno (1984) 154 Cal.App.3d 719,

727-728 [approving jury instruction that civil litigant asserting exemption

carries burden of proof of establishing facts supporting that assertion].)

The People did not even try to meet their burden, and the oral assertion by

the trial deputy that “the police report mentioned over $950” (RT, at p. 11,

lines 25-26) has no legal significance whatsoever, except, perhaps to

highlight that the People affirmatively declined to attempt to meet their

burden.

IV.

THE TRIAL COURT PROPERLY REJECTED APPELLANT’S

ARGUMENT THAT THE VALUE OF A STOLEN CREDIT CARD

IS DETERMINED BY THE AMOUNT OF CREDIT EXTENDED TO

THE ACCOUNTHOLDER

Appellant’s final argument is that the trial court erred in

resentencing Respondent as to the Receiving Stolen Property conviction in

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case RIF1205134, because no evidence was presented by Respondent

tending to prove that the accountholder had a credit limit of less than $950

on her Target credit account. This is nonsensical.

To begin with, again, Respondent’s initial burden was to make a

prima facie showing that he was entitled to relief. This burden was met

through his letters and the court’s records demonstrating the nature of the

property he had possessed, in this case a credit card, and the fact that no

victim restitution had been ordered. This showing was further bolstered by

the fact that the People had amended the complaint and permitted

Respondent to plead to a Petty Theft charge, reflecting their position at the

time of the plea that each of the stolen credit cards he had possessed were

valued at less than $9504. Respondent made the requisite prima facie

showing, and it was the People’s burden to prove that the stolen credit card

that was the subject of count one was worth more than $950. Again, they

did not even attempt to do so.

At the eligibility hearing, no evidence was presented by the People

as to the value of the stolen credit card Respondent had possessed. Rather,

the People argued, and continue to assert in this appeal, that it must be

presumed, as a matter of law, that all stolen credit cards are worth the

4 There is no basis in the record even to speculate that the property that was the subject of count three was anything other than a stolen credit card.

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amount of the account-holder’s credit limit. (AOB, p. 21.) This Court need

not even address this contention here, because, in this case, the People

elected not to present any evidence as to the limit on the accountholder’s

Target account or whether any of that credit was actually available to

someone who might have possessed and intended to use the card on the

date it was possessed by Respondent.

However, even if the People had presented competent evidence as to

the amount of credit available on the subject credit card, that evidence

would be immaterial to the determination of the value of the stolen credit

card on the date of the offense. Appellant erroneously conflates the concept

of “the value of a stolen credit card,” relevant when a court determines

whether resentencing under section 1170.18 is proper, with “the value of

goods and services an individual intended to purchase with a stolen credit

card on a particular date and at a particular time,” which may be relevant in

the context of federal sentencing guidelines, but does not bear on a section

1170.18 inquiry. (AOB, pp. 22-25.)

Again, the inquiry with regard to resentencing under Proposition 47

is whether the offense of which the person was convicted would, if

committed after the adoption of the Act, have been punishable as a

misdemeanor. (§1170.18, subd. (a).) Respondent was convicted, in count

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one, of a felony violation of section 496, subdivision (a). That statute was

amended by Proposition 47 to be punishable as a misdemeanor “if the value

of the property does not exceed nine hundred fifty dollars ($950).” (§496,

subd. (a).) The degree of offense turns on “the value of the property” and

not “the value of goods and services an individual intended to purchase

with a stolen credit card.”

Appellant’s position not only ignores the language of section 496,

subdivision (a), as amended by Proposition 47, it is based on two premises,

one of which is speculative and likely untrue, and the other of which is

definitely untrue. The first premise is that the “credit limit” on an account

is always equivalent to the “available credit” on an account. This is rarely

the case. To survive in a struggling economy, Americans are known to run

up their credit cards to the maximum credit limit, rendering their card

valueless to would-be thieves. The second premise is that, on the date it is

possessed, a stolen credit card can be used to purchase goods or services

valued up to the limit of available credit on the account. This is contrary to

reality. Banks take great lengths to protect themselves from fraudulent

transactions.

(http://money.usnews.com/money/personal-finance/articles/2013/07/10/

how-credit-card-companies-spot-fraud-before-you-do.) Once a card has

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been reported stolen, the account is frozen, and the card cannot be used by

anyone – even the account holder. Even where a card has not yet been not

reported stolen, where spending is even slightly inconsistent with the

historic spending habits of the accountholder, banks are quick to freeze the

account, contact the accountholder, and disallow any purchases until the

disparity in spending habits has been adequately resolved.

The People’s position is also inconsistent with California’s settled

legal standard for determining “value” of stolen property. “‘The value to be

placed upon stolen articles for the purpose of establishing a felony charge is

the fair market value of the property and not the value of the property to

any particular individual.’ People v. Latham, 43 Cal.App.2d 35, 110 P.2d

101, 103.” (People v. Lizarraga (1954) 122 Cal.App.2d 436, 438.) “‘Fair

market value is the highest price, estimated in terms of money, for which

the property would have sold in the open market at that time and in that

locality, if the owner was desirous of buying but under no urgent necessity

of doing so, if the seller had a reasonable time within which to find a

purchaser, and if the buyer had knowledge of the character of the property

and of the uses to which it might be put.’“ (People v. Pena (1977) 68

Cal.App.3d 100, 102, fn. 1.)

24

Where there is no “legal” market for the stolen item, courts generally

look to “the illegal market price” and other objective evidence in

determining the value of a stolen item, including a credit card. (See e.g.

Miller v. People (1977) 193 Colo. 415, 418; United States v. Tyers (2nd

Cir. 1973) 487 F.2d 828; United States v. Ditata (7th Cir. 1972) 469 F.2d

1270; United States v. Devall (5th Cir. 1972) 462 F.2d 137; Churder v.

United States (8th Cir. 1968) 387 F.2d 825; Jalbert v. United States (5th

Cir. 1967) 375 F.2d 125; United States v. Ciongoli (3d Cir. 1966) 358 F.2d

439; United States v. Kramer (2d Cir. 1961) 289 F.2d 909; Mance v. State

(1908) 5 Ga.App. 229, 62 S.E. 1053; People v. Colasanti (1974) 35 N.Y.2d

434; State v. Moody (1973) 113 N.H. 191.) There is no conceivable reason

why this widely-embraced and workable standard shouldn’t be adopted as

the appropriate standard for use in California.

25

CONCLUSION

The trial court properly granted Respondent’s petitions for

resentencing and properly declined to reinstate all dismissed charges and

allegations in case RIF1300396. Its rulings, as to both cases, should be

affirmed.

Dated: ______________ Respectfully submitted,

STEVEN L. HARMONPublic Defender

By: __________________LAURA ARNOLDDeputy Public Defender

Attorney for RespondentANDRE BELL

26

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT, DIVISION TWO

PEOPLE OF THE STATE OF CALIFORNIA,

Plaintiff/Appellant,

v.

ANDRE BELL,

Defendant/Respondent,

Case No. E063018

Super. Ct. Nos. RIF1205134/RIF1300396

CERTIFICATE OF WORD COUNT

I, LAURA ARNOLD, do hereby certify that, according to the computer

program used to prepare the instant petition and accompanying memorandum,

including headings and footnotes, the length of the petition and memorandum of

points and authorities is 5,428 words.

I declare the foregoing to be true under penalty of perjury. Executed this

11th of September, 2015, at Murrieta, California.

________________________LAURA ARNOLD

TABLE OF AUTHORITIES

PAGE #FEDERAL CASESChurder v. United States

(8th Cir. 1968) 387 F.2d 825...................................................................25Jalbert v. United States

(5th Cir. 1967) 375 F.2d 125...................................................................25United States v. Ciongoli

(3d Cir. 1966) 358 F.2d 439....................................................................25United States v. Devall

(5th Cir. 1972) 462 F.2d 137...................................................................25United States v. Ditata

(7th Cir. 1972) 469 F.2d 1270.................................................................25United States v. Kramer

(2d Cir. 1961) 289 F.2d 909....................................................................25United States v. Tyers

(2nd Cir. 1973) 487 F.2d 828..................................................................25

STATE CASESBrosnahan v. Brown

(1982) 32 Cal.3d 236...............................................................................10Crocker National Bank v. City and County of San Francisc

(1989) 49 Cal.3d 881................................................................................6Doe v. Harris

(2013) 57 Cal.4th 64..............................................................11, 16, 17, 18Dye v. Council of City of Compton

(1947) 80 Cal.App.2d 486.......................................................................15In re Chavez

(2003) 30 Cal.4th 643..............................................................................11Los Angeles Cnty. v. Rockhold

(1935) 3 Cal.2d 192.................................................................................16People v. Briceno

(2004) 34 Cal.4th 451................................................................................9People v. Cox

(1924) 66 Cal.App. 287...........................................................................15People v. Feno

(1984) 154 Cal.App.3d 719.....................................................................20People v. Hy-Lond Enterprises. Inc.

(1979) 93 Cal.App.3d 734.......................................................................13

People v. Latham(1941) 43 Cal.App.2d 35.........................................................................24

People v. Lizarraga(1954) 122 Cal.App.2d 436.....................................................................24

People v. Pena(1977) 68 Cal.App.3d 100.......................................................................24

People v. Segura(2008) 44 Cal.4th 921..............................................................................13

People v. Superior Court (Gifford)(1997) 53 Cal.App.4th 1333....................................................................13

T.W. v. Superior Court(2015) 236 Cal.App.4th 646..........................................................9, 11, 12

Town of Martinez v. Johnson(1927) 201 Cal. 397.................................................................................14

OTHER STATES CASESMance v. State

(1908) 5 Ga.App. 229..............................................................................25Miller v. People

(1977) 193 Colo. 415...............................................................................25People v. Colasanti

(1974) 35 N.Y.2d 434..............................................................................25State v. Moody

(1973) 113 N.H. 191................................................................................25

CIVIL CODESection 2295................................................................................................14

GOVERNMENT CODESection 26500..............................................................................................13

PENAL CODESection 1170.18....................................................................................passimSection 290.46.............................................................................................17Section 459.5...........................................................................................6, 19Section 490.2.................................................................................................5Section 496, subdivision (a)........................................................................23Section 684..................................................................................................13

CALIFORNIA CONSTITUTIONarticle II, section 1.......................................................................................14article IV, section 1......................................................................................15

BALLOT INITIATIVESProposition 47, Criminal Sentences. Misdemeanor Penalties. Intiiatve

Statute...............................................................................................passim

SECONDARY AUTHORITYCouzens & Bigelow, Proposition 47 “The Safe Neighborhoods and

Schools Act”, December 2014.................................................................20http://money.usnews.com/money/personal-finance/articles/2013/07/10/

how-credit-card-companies-spot-fraud-before-you-do...........................24Judicial Council of Cal., AOC, 2014

Court Statistics Report: Statewide Caseload Trends 2003-2004 Through 2012-2013 (2014)....................................................................................10

Voter Information Guide, argument in favor of Prop. 47............................10Voter Information Guide, Gen. Elec. (Nov. 4, 2014) analysis by the Legis.

Analyst.......................................................................................................9

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TABLE OF CONTENTS

PAGE #

TABLE OF AUTHORITIES..........................................................................i

STATEMENT OF RELEVANT FACTS AND PROCEDURE...................2

STANDARD OF REVIEW...........................................................................6

SUMMARY OF ARGUMENT.....................................................................7

MEMORANDUM OF POINTS AND AUTHORITIES...............................8I. SECTION 1170.18 APPLIES TO INDIVIDUALS

CONVICTED “BY PLEA,” WHETHER OR NOT THEY PLED GUILTY PURSUANT TO A PLEA BARGAIN.............................8

II. CASES APPLYING CONTRACT PRINCIPLES TOUNILATERAL BREACHES OF A PLEA BARGAINARE INAPPOSITE..........................................................................12

III. A PERSON’S ELIGIBILITY FOR RESENTENCINGUNDER SECTION 1170.18 DEPENDS ON CRIMES OFWHICH HE WAS CONVICTED, NOT ABOUT CRIMES OFWHICH HE WOULDA’, COULDA’ OR SHOULDA’ BEENCONVICTED...................................................................................18

IV. THE TRIAL COURT PROPERLY REJECTED APPELLANT’SARGUMENT THAT THE VALUE OF A STOLEN CREDITCARD IS DETERMINED BY THE AMOUNT OF CREDITEXTENDED TO THE ACCOUNTHOLDER................................20

CONCLUSION...........................................................................................26

CERTIFICATE OF WORD COUNT

PROOF OF SERVICE

ii